Judge Roberts on guns and interstate commerce

Posted by David Hardy · 15 September 2005 10:04 AM

AP reports that Roberts was questioned by Diane Feinstein relating to the Gun Free School Zones Act, and responded that the problem had been that the Act had no jurisdictional requirement (i.e., a provision stating that it only applied if the possession had some specified link to interstate commerce) but that that would be easily fixed legislatively (Feinstein cuts him off, but he seems to have started to say, since guns move in interstate commerce).

As I recall, Lopez did mention the lack of a jurisdictional requirement, but concluded that wasn't the key. Rather, it was that possession simply didn't affect commerce, period. And it suggested pretty strongly that the fact a gun had once moved in commerce wasn't enough of a link.

Humorous note: Feinstein apparently has forgotten that Congress re-enacted the Act, after it was stricken, adding a jurisdictional element -- that the gun has "moved in or otherwise affected" commerce. As noted above, moved in is probably invalid under the Lopez case. But it is funny to see a Senator talking about doing a legislative fix and forgetting that she's already done that.

(Transcript of questioning follows below)

UPDATE: Dave Kopel has some interesting observations regarding Robert's other comments on the interstate commerce power. On this issue the judge (whose caselaw suggested a desirably less-than-all-encompassing view of that power, does seem to be backtracking.

FEINSTEIN: I won't go there. Let me go somewhere else.

Commerce clause, the 14th Amendment, Lopez, which began a chain of about 36 cases, striking down major pieces of legislation. It's not easy to get a bill passed here. I mean, there are hearings, there are discussions, there are markups, there's one house, there's another house, there's a president.

It goes through most of the time scrubbed pretty good before it gets to the president.

Gun-free schools -- struck down in 1995, an impermissible use of the commerce clause.

'96, Moses Lake, Washington -- shooting in a school. '97, Bethel, Alaska, principal and one student killed. '97, Pearl, Mississippi, two students killed and seven wounded by a 16-year old. 1997, West Paducah, three students killed, five wounded.

And on and on and on -- an impermissible use of the commerce clause to prohibit possession of a weapon in schools.

Now, at what point does crime influence commerce?

ROBERTS: Well, I think it does.

And one of the things that's important to understand about the Lopez decision is the court analyzed it -- and, again, I'm not taking a position on whether it was correctly decided or not.

FEINSTEIN: Right, right.

ROBERTS: But as the court analyzed it, one of the things about the act was that it did not have what's known as a jurisdictional requirement. It didn't have a requirement that the firearm be transported in interstate commerce -- a requirement that I think it would be easy to meet in most cases, because guns...

FEINSTEIN: But the firearm is transported in interstate commerce -- maybe not when that student had it, but to get to the student, the firearm has been transported in interstate commerce.

ROBERTS: My point is that the fix in Lopez, all that the court was saying was missing in there, or what was different about Lopez than many of the other cases, was that lack of a jurisdictional requirement.

And if the act had been -- as I understand the court's analysis, the act had required that, which I think, again, it's fairly easy to show in almost every case.

ROBERTS: As you say, these guns are transported in interstate commerce. Then that would have been within the Congress' power under the commerce clause.

I think it was an unusual feature of the legislation that it didn't have that requirement, as so many laws do. As you know, it often says in interstate commerce. And that's -- at least as I understand the Lopez decision -- what made it unusual.

FEINSTEIN: That's very helpful. You might get it back again someday, with that fix.

Here is the exchange between Feingold and Roberts from the AP transcript of the 14 Sept hearing:

FEINGOLD: Let's go to something else then. I'd like to hear your views about the Second Amendment, the right to bear arms. This is an amendment where there's a real shortage of jurisprudence.

You mentioned the Third Amendment where there's even less jurisprudence, but the Second Amendment's close. So I think you can maybe help us understand your approach to interpreting the Constitution by saying a bit about it.

The Second Amendment raises interesting questions about a constitutional interpretation. I read the Second Amendment as providing an individual right to keep and bear arms as opposed to only a collective right. Individual Americans have a constitutional right to own and use guns. And there are a number of actions that legislatures should not take in my view to restrict gun ownership.

FEINGOLD: The modern Supreme Court has only heard one case interpreting the Second Amendment. That case is U.S. v. Miller. It was heard back in 1939. And the court indicated that it saw the right to bear arms as a collective right.

In a second case, in U.S. v. Emerson, the court denied cert and let stand the lower court opinion that upheld the statute banning gun possession by individuals subject to a restraining order against a second amendment challenge.

The appeals court viewed the right to bear arms as an individual right. The Supreme Court declined to review the Appeals Court decision.

So what is your view of the Second Amendment? Do you support one of the other views of the views of what was intended by that amendment?

ROBERTS: Yes. Well, I mean, you're quite right that there is a dispute among the circuit courts. It's really a conflict among the circuits.

The 5th Circuit -- I think it was in the Emerson case, if I'm remembering it correctly -- agreed with what I understand to be your view, that this protects an individual right. But they went on to say that the right was not infringed in that case. They upheld the regulations there.

The 9th Circuit has taken a different view. I don't remember the name of the case now. But a very recent case from the 9th Circuit has taken the opposite view that it protects only a collective right, as they said.

In other words, it's only the right of a militia to possess arms and not an individual right.

Particularly since you have this conflict -- cert was denied in the Emerson case -- I'm not sure it's been sought in the other one or will be. That's sort of the issue that's likely to come before the Supreme Court when you have conflicting views.

I know the Miller case side-stepped that issue. An argument was made back in 1939 that this provides only a collective right. And the court didn't address that. They said, instead, that the firearm at issue there -- I think it was a sawed-off shotgun -- is not the type of weapon protected under the militia aspect of the Second Amendment.

So people try to read the tea leaves about Miller and what would come out on this issue. But that's still very much an open issue.

FEINGOLD: I understand that case could come before you. I'm wondering if you would anticipate that in such a case that a serious question would be: Which interpretation is correct?

ROBERTS: Well, anytime you have two different courts of appeals taking opposite positions, I think you have to regard that as a serious question. That's not expressing a view one way or the other. It's just saying, I know the 9th Circuit thinks it's only a collective right. I know the 5th Circuit thinks it's an individual right. And I know the job of the Supreme Court is to resolve circuit conflicts. So I do think that issue is one that's likely to come before the court.

Russ Feingold has become less pro-2a. There is a quote by him on the GOP website about how arms are for the citizens against a repressive government. Can't remember the link. This is what Dave Kopel said of him:
"Two-term Democratic Senator Russ Feingold (*D/F) occasionally votes pro-gun, and has always believed the Second Amendment is an individual right. In 2004, he reversed his earlier position, and opposed the renewal of the ban on so-called "assault weapons."

Unfortunately, a nominee has to be noncommittal in order to be passable these days.

I am not surprised that he did not take Feingold to task on his description of US v. Miller. The holding in Miller had NOTHING to do with a "collective" right (whatever that is).

Miller is also very bad precedent, as the defendants were not present, nor was their counsel. I hope that any court would take a dim view of a case where one side had no representation, no matter how desirable the outcome.

Russ Feingold:
"The Second Amendment was clearly intended to counterbalance a distrust of a potentially oppressive federal government and to protect the right to defend against an oppressive government. The question arises over whether that right rests with the states alone or with the states and the people of those states," said Feingold. "I have always believed the Second Amendment clearly guarantees the people themselves the right to bear arms." http://www.senate.gov/~feingold/980923b.htmlhttp://www.house.gov/hostettler/issues/2ndamen.htm